Peacock v. Leonard, 8 Nev. 84

Peacock v. Leonard

8 Nev. 84 | Nev. | 1872

By the Court,

Garber, J. :

Leonard sued Peacock in a justice’s court. The complaint alleged that, on a certain day, Leonard was in the peaceable *88possession of certain real estate, and tbat so being, Peacock “wrongfully, unlawfully, and forcibly broke and entered into tbe same, and unlawfully and forcibly ousted Leonard, and has, ever since said forcible ouster, unlawfully and forcibly held possession,” etc. Leonard obtained a judgment, and Peacock appealed to tbe district court. In tbe district court, tbe jury found a verdict of guilty, and assessed .the damages at ten dollars, and thereupon judgment was rendered in favor of Leonard for tbe possession of tbe premises, treble damages, and costs. To annul tbat judgment, Peacock bas made tbis application for a writ of certiorari.

As tbe district court on appeal bad exactly tbe same jurisdiction as tbe justice of tbe peace, tbe question is whether tbis was an action of “forcible entry and unlawful detainer,” oran action “for tbe possession of lands and tenements, where tbe relation of landlord and tenant exists, or when such possession bas been unlawfully or fraudulently obtained or withheld,” as provided for in tbe constitution of tbis State. I think it must be regarded as tbe former, and tbat consequently tbe whole proceeding was void. Tbe gravamen of tbe complaint is tbe forcible entry alleged. Though tbe complaint also annexes tbe epithet unlawfully to the entry charged, tbis can not be treated as tbe statement of a substantive cause of action, distinct from tbe forcible entry; for our statutes have provided for or created no such offense as an unlawful as distinguished from a forcible entry. In one sense, however, every forcible entry is unlawful, but not unlawful according to tbe meaning of tbat term as employed in the constitutional grant of jurisdiction. Tbe complaint must then be taken to charge simply a forcible entry and unnecessarily to assert tbe conclusion tbat it was also unlawful because forcible. Tbe same may be said of tbe allegation tbat tbe detainer was unlawful. “In a complaint so framed, tbe forcible entry is tbe gist of tbe action” — tbe detainer not being stated as an independent ground of relief, but as a mere continuation or consequence of tbe entry. 31 Cal. 126.

*89The judgment, too, proceeds on the same theory — treble damages being authorized only on the hypothesis that this was an action for and recovery based upon a forcible entry or a forcible holding.

The record shows that the district court as well as that of the justice exceeded their jurisdiction. Certainly it fails to show their jurisdiction clearly and affirmatively. I am of opinion, therefore, that the proceedings and judgment under review should be annulled.